Dethrone the EPA

The choice: Prosperity through liberty, or depression through strangulation.

The current presidential campaign hinges on jobs and the economy. Yet most of the debate has centered on peripheral issues such as the Bush tax cut, when there is a Tyrannosaurus in the room that is being virtually ignored. That monster is the EPA.

The EPA is today the primary enemy of economic growth in the United States, and through it the world. The damage that it has done, is doing, and threatens to do in the future is immense. Virtually since its birth in 1970, the agency has committed one atrocity after another. As one of its first acts after coming into existence, the EPA banned the vital pesticide DDT. (This was done is direct defiance of the investigatory court findings of federal judge Edmund Sweeney, which showed that DDT was not a danger to humans or wildlife.) As a result, large regions of Africa and Asia were given over to malaria-spreading mosquitoes, killing tens of millions of people and aborting economic development.

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#ad#From 1859 to 1971, the U.S. oil industry grew virtually continuously, in the process serving mightily to drive our economy and win our wars. But that growth was stopped dead in 1971, and sent into decline thereafter as the advent of the EPA and the accompanying National Environmental Policy Act made it increasingly difficult to drill. The global economic and strategic catastrophe this has caused can be seen in the graph below, where I show U.S. oil production, OPEC oil production, and non-U.S., non-OPEC oil production from 1960 to the present. The graph shows that U.S. oil production grew at an average rate of 3.2 percent per year during the 1960s, peaking at 9.6 million barrels per day (mpd) in 1970. The growth of OPEC production, meanwhile, which had been extremely rapid during the 1960s, came to a screeching halt in 1973, when the OPEC powers replaced the previously dominant Seven Sisters’ policy of expanding production to fuel the world economy with an alternative policy of constricting production to loot the world economy. As a result, OPEC production, after plummeting and then slowly rebounding, is still where it was in 1973. Thus the entirety of the increase of world oil production over the past four decades — during which time the world economy has doubled in size — has come from non-OPEC, non-U.S. sources. As the graph shows, this has increased at a rate of 3.4 percent per year since 1970, essentially the same as the average U.S. growth rate from 1960 to 1970. With the green line on the graph, I show how U.S. production would have developed had it matched other non-OPEC sources and continued to grow at its pre-EPA rate. In that case, instead of producing 5.7 mpd today, we would now be producing 35 mpd. Together with other non-OPEC production, this would have totally marginalized OPEC and constrained oil prices below $30 a barrel today, with associated gasoline prices of $1 to $1.50 per gallon. Just as they did in the 1950s and 1960s, such low oil prices would fuel dramatic U.S. and global economic growth.

Instead, however, because of the de facto collusion of the EPA — which has sabotaged America’s oil industry and prevented the use of clean-burning methanol fuel, which we could readily and cheaply make from abundant natural gas or coal — OPEC has been able to operate as a highly effective cartel, imposing a massive and extremely regressive tax not only on America, but on the entire world economy, and using the proceeds to fund the promotion of terrorist movements and the development of nuclear weapons intended for our annihilation.

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Actual U.S.production is marked with the lavender squares. Hypothetical U.S. production continuing at pre-EPA growth rates is shown by the green cross-hatched line. Note that such growth was in fact achieved by other non-OPEC countries.

#page#Prior to 1971, the average time from groundbreaking to commencement of operation for a nuclear power plant was four years. For the most recently completed plants, it is 15 years. This very costly fourfold increase has been imposed by the EPA and the National Environmental Policy Act. Under this law, nuclear-power projects have been subjected to constant delays caused by government bureaucrats’ capriciously changing engineering requirements in the middle of construction, as well by malevolent legal harassment by organizations whose openly stated objective is to wreck the nuclear industry by driving up its costs. In addition, capital costs have multiplied fourfold because of endless additional requirements imposed by the Nuclear Regulatory Commission without rational engineering justification. Furthermore, as a result of NRC interference, it has become nearly impossible for the nuclear industry to make improvements, even obvious ones, that might serve to reduce their costs.

#ad#EPA regulations have also allowed government officials to capriciously revoke the operating licenses of nuclear power plants during their construction, or even after they have been completed. Massachusetts governor Michael Dukakis made use of the fine print in the nuclear regulations to delay the opening of the Seabrook nuclear station for three years after it was completed, at great cost to the utility, while New York governor Mario Cuomo stopped the opening of the Shoreham station in Long Island altogether, arbitrarily turning the multi-billion-dollar investment into a total loss. In the face of the uncertainty created by such arbitrary massive destruction of private property, it is no wonder that few have been willing to invest in additional plants.

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Nuclear power produces 20 percent of American electricity, and coal produces 40 percent. The Obama EPA recently set forth new regulations that will, at a minimum, vastly increase the price of coal-generated power and probably, as is their clear intent, wipe out the industry altogether. This will destroy hundreds of billions of dollars of private property and impose trillions of dollars of highly regressive economy-destroying costs on the American public.

But for every one of these major outrages, the EPA acts in thousands of obscure cases to stifle or chill economic growth. Because “the environment” can be taken to include nearly everything, the EPA has arrogated to itself the right to control vast areas of American life. Rather than simply regulate emissions, it has chosen to control the design of automobiles and many other types of equipment, down to the subcomponent level, thereby preventing competition or improvement. It has caused millions of construction permits to be denied or delayed, on pretexts ranging from preserving imaginary wildlife migratory rest stops to halting suburban sprawl. It has prevented innumerable individuals from improving their own property, even when improvements — such as draining disease-spreading swamp puddles — are needed to protect public health and safety. It has created mountains of unjustifiable, indecipherable, and fundamentally unknowable regulations, and imposed trillions of dollars in cumulative compliance and litigation costs on businesses of every description.

In doing all this, the EPA has employed methods that are not only unconstitutional but completely incompatible with Anglo-American common law or any other system of justice. In 1790, the first Congress passed a criminal statute listing 20 federal crimes, all of them actions that any reasonable person might expect to be illegal even without reading the law. In contrast, the EPA has invented thousands of crimes, and there is not one person on this planet — not at the EPA, not at any law school or law firm, not at the Supreme Court — who knows what they all are. (If anyone disputes this, here is a challenge: Come to my office. I’ll give you a test with 100 questions on EPA regulations. You get three hours to answer. If you get 65 of the answers right, I’ll give you $10,000. If you don’t, you give me $5,000. Any takers?) The myriad EPA offenses are not confined to actual emissions or other physical activities in the real world; they also include compliance with EPA paperwork requirements, many of which are not merely hidden in the vast and confused tomes and files of ever-changing EPA jurisprudence, but encoded in unpublished internal memos, and which can even be changed and enforced retroactively. Thus even people who have gone to great lengths and expense to try to comply with EPA regulations have found themselves prosecuted and fined for huge sums or imprisoned.

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To those with a standard education in what the American system of justice is supposed to be, this may seem bizarre, or even impossible, but it is true. The EPA gets away with it because rather than employing the actual U.S. court system, it has created its own internal system of “administrative courts” whose “judges” are employees of the EPA and subject to promotion, transfer, or discipline by the agency. Not surprisingly, these EPA courts find in favor of EPA prosecutors in nearly every case, and when they don’t, their verdicts can be set aside by the EPA administrator. And while it is true that subsequent to exhausting their resources within this rigged process, defendants can appeal to the real court system, the EPA process itself can take years, during which defendants’ property can remain confiscated, their liberty endangered, and their credit and businesses wrecked. As a result, most prefer to settle and submit.

#page#In carrying out these vendettas, the EPA has acted without any sense of justice or environmental concern. For example, companies that chose to pay a certified waste-disposal firm to dispose of a small amount of waste for them in a certified manner have found themselves hit with huge fines when the EPA decided to reclassify the disposal area as a Superfund site and, regardless of how tiny was the firm’s contribution to the waste collection there, chose to penalize the company with the entire cost of the dump cleanup. Such actions by the EPA can only discourage responsible corporate behavior, since clearly, rather than face the risk of being arbitrarily presented with a cleanup bill for a Superfund site, the companies involved would have been far safer if they had just dumped their waste right out into the street.

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#ad#The outrageous behavior, threats to liberty, and devastating harm to prosperity done by the EPA are so vast and varied that they cannot be adequately covered in an article of this length. To even get a handle on the problem, a book­length treatment is required. Fortunately, several are available. Three good ones to start with are Regulators Gone Wild: How the EPA Is Ruining American Industry, by Rich Trzupek (Encounter Books, 2011), Out of Bounds, Out of Control: Regulatory Enforcement at the EPA, by James V. DeLong (Cato Institute, 2002), and Lost Rights: The Destruction of American Liberty, by James Bovard (St. Martin’s Griffin, 1994.) Trzupek’s book is the most up to date on matters of current controversy, but DeLong’s book cuts much deeper into the real nature of the EPA and its subversion of due process; for those with time for only a short treatment (it is 109 pages), it is essential reading. But if you have the time, and want a full understanding of not only the EPA but the total assortment of anti-growth regulatory agencies, read Bovard, whose Lost Rights exposé of the threat posed by an emerging bureaucratic police state remains a true classic. Beyond these, there is my own book Merchants of Despair, which lays bare the roots and consequences of the antihuman ideology that drives the zealots who support and staff the EPA, and that will perforce continue to encourage it to ever more destructive actions.

The problem represented by the EPA cannot be remedied simply by replacing its current administrator, Lisa Jackson, and reversing a few of her most atrocious actions. Much more thorough structural reform is necessary. Some of the required measures include:

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1. The EPA’s extralegal system of puppet “administrative courts” must be abolished. Instead, the EPA must be required to pursue all actions through the real court system, where defendants will be afforded the right to a speedy and public trial by a real jury in front of a real judge and afforded all other aspects of due process, as prescribed by Amendments IV, V, VI, VII, and VIII of the United States Constitution.

2. The EPA must be forbidden to seize or destroy the property of any person until and unless such person has been found guilty of a crime in a court of law.

3. The EPA must be required to rewrite its current incoherent mass of confused regulations, amendments, findings, and memos into a single clear coherent, readable, and short code setting forth clear, justifiable, and attainable legal limits to pollutant emissions from stationary and mobile sources, with amendments to said code allowed only with the permission of Congress, and only at regularly scheduled intervals of no greater frequency than once per year; any such amendments must be incorporated into the code in such a way as to maintain its clarity. All EPA regulations, amendments, findings, memos, etc., outside this document must be declared null and void. Furthermore, the code must be restricted in its scope to setting forth limits on actual pollutant emissions; it must contain no assertion of authority over engineering design or other methods by which adherence to the code’s limits may be obtained.

4. The EPA code needs to set forth a clear, regular, and rational system of penalties for violations of its code, with the amount of the penalty set in proportion to the amount of pollutant released by a given defendant, and no penalties imposed in the absence of any pollutant released.

5. The EPA must be precluded from prosecuting anyone whose actions were legal at the time they were taken, or whose actions were taken on the advice or with the concurrence of the EPA.

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6. The EPA must be constrained from asserting authority over how anyone other than the U.S. federal government may use, improve, or alter in any way his own land, buildings, vehicles, or other property, as per Amendment X to the United States Constitution.

In his campaign speeches, Barack Obama has been saying that achieving an economic recovery will involve collective sacrifice. That is the exact opposite of the truth. In fact, what we need to do more than anything else is to stop the practice of collective human sacrifice on the altar of an irresponsible bureaucracy with aspirations to omnipotence.

Mitt Romney and Paul Ryan frequently mention “streamlining regulations” among their campaign talking points, but they need to go much further. Americans want economic growth. They do not want regulation-enforced stagnation. Americans want freedom. They do not want Big Brother. These are the choices that need to be set before the public: Prosperity through liberty, or depression through strangulation.

— Robert Zubrin is president of Pioneer Astronautics, a fellow with the Center for Security Policy, and the author of Energy Victory: Winning the War on Terror by Breaking Free of Oil. His latest book, Merchants of Despair: Radical Environmentalists, Criminal Pseudo-Scientists, and the Fatal Cult of Antihumanism, was recently published by Encounter Books.

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